November 30th, 2006

No, your medical malpractice case will NOT settle fast

When starting a New York medical malpractice case many folks invariably ask, “How long will it take?” I’d love to give a good answer about how fast the courts move, or how quickly insurance companies offer a quick settlements, but that’s not the way it works.

It will take years. Even if a surgical team leaves a clamp or sponge inside you, the defendants are unlikely to even discuss a settlement until the time of jury selection. The reasons are not terribly complex, and are related in part to the fact that the defendants’ insurance companies will hire the defense lawyers and plot the strategy:

If the insurance companies make your life miserable — even on slam dunk cases of retained surgical equipment as shown in the link above — then attorneys won’t take smaller suits because it isn’t worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;
Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and
If you get a judgment in your favor in New York, then interest on the money starts to run from the time of the judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments in the interim.

So there it is, short and not-so-sweet. Nothing is likely to happen fast.

And because of this, any medical malpractice case that is taken must be prosecuted and prepared with the intent to take a verdict. It would be foolish to hope for a settlement offer that may never come.

Links to this post:

How a personal injury lawyer views the medical malpractice system
How a personal injury lawyer views the medical malpractice system. Personal injury lawyer Eric Turkewitz responds to my recent USA Today piece on fixing the medical malpractice system. by Eric Turkewitz. In a USA Today op-ed, …
posted by Kevin @ November 18, 2009 2:00 PM

medical malpractice – vetting the case
cross-posted from the new york personal injury law blog. about 95-98% of medical malpractice inquiries to my office are rejected. having previously discussed medical malpractice law and the economics of bringing such an action, …

posted by Eric Turkewitz @ May 22, 2007 5:33 PM

medical malpractice economics
cross-posted from new york personal injury law blog. two weeks ago i wrote medical malpractice – a primer, directed toward members of the medical community due to a recurring theme i saw on medical blogs: the idea that such suits are …

posted by Eric Turkewitz @ April 26, 2007 3:14 PM

medical malpractice — a primer
i’ve been reading a lot of medical blogs lately, and medical professionals have been reading mine. and as many doctors have ranted about attorneys (such as those in the comments at kevin, md and flea) i’ve noticed a lack of some basic …

posted by Eric Turkewitz @ April 13, 2007 10:34 AM

November 29th, 2006

Failed Security Lawsuits: Why Building Owners Are Liable

This case from Missouri appeared in one of the jury verdict reporters I receive, and I think it illustrates well the issues presented when personal injury results from failed security. The issues are the same whether it occurs in Missouri, New York, or elsewhere:

Tenant attacked in hallway of apartment building: Failure to properly maintain premises: Rape: Emotional trauma: Settlement.

X.Y.Z., 24, was exiting her apartment when a man attacked her and forced her back inside. He robbed and raped X.Y.Z. and burglarized her apartment. X.Y.Z. suffered emotional trauma and now is afraid to be alone in her apartment or in crowds of strangers…

X.Y.Z. sued the owner and operator of her apartment building. Suit alleged the key-operated lock to the back door did not function properly, allowing individuals without keys to gain access to the building. Plaintiff claimed defendants were aware of the malfunctioning lock but failed to repair it.

Defendants denied they were responsible for the attack and contended they had no knowledge of the defective lock. Plaintiff countered with maintenance work orders that showed problems with the back door lock two months before she was attacked.

The parties settled before trial for $700,000, with an additional $15,000 to be donated to the local rape crisis center on plaintiff’s behalf.

While building owners are not the attackers in these personal injury cases, the owners may be liable for having failed in the duty to provide security. If there is a broken door lock in an apartment building in a high crime area, for example, and they know about it but do nothing, it is not a question of if someone will be attacked, but when. Since the owners owe a duty of care to the residents, if they act negligently and breach that duty, they would be liable for damages to the individual.

November 28th, 2006

How much are the legal fees in a personal injury case?

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee “sliding scale” structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to “value” a potential case, and other subjects.

November 27th, 2006

New York Counterfeit Drug Bill Affected by Election?

The recent election seems destined to play a role in the counterfeit drug bill pending in New York. While last week I wrote about Tim Fagan’s Law pending in Washington, that is not the only proposed legislation designed to bring greater safety to our drug distribution system. In Albany, Assemblywoman Amy Paulin (D-Scarsdale) introduced her own bill to track drugs and increase pharmaceutical safety. From the press release:

This legislation requires drug manufacturers to establish a pedigree for each prescription drug, requires every wholesaler to submit a bond of $100,000, punishes manufacturers and wholesalers who intentionally package, sell, transfer, distribute or deliver a counterfeit drug with a class D Felony, establishes a fine of up to two thousand dollars per violation for offending drug manufacturers, and authorizes criminal background checks for manufacturers and wholesalers.

But two things happened in the election. First on the negative side, Paulin’s Republican co-sponsor lost his Senate seat. Nick Spano (R-Yonkers) had hung on to re-election by a mere 18 votes in 2004, but this time lost. Paulin was bold to reach across the aisle to ask Spano to co-sponsor this bill — both pictured with me here after the press conference annoucing the legislation — especially given the vulnerability of his seat. But sound public policy comes first for this bill she cares passionately about. She now needs a new sponsor on the Senate side.

And second, on the far more positive side, Eliot Spitzer blew away his opponent to win the governorship. Since Spitzer as Attorney General started an investigation into drug distribution practices in New York, it is presumably a matter he knows and cares much about. One of the subpoenas he dropped in this investigation was on my firm, for the records that I have for representing Tim Fagan and investigating the problem of counterfeit drugs.

This bill is one of many in state legislatures across the country that have popped up give the extraordinary risks from counterfeit drugs that exists due to our leaky drug supply chain. Hopefully the holes can be plugged before more people are injured.

November 22nd, 2006

Counterfeit Drugs: How the election helps consumers

Counterfeit drugs fly beneath the usual political radar of war, deficits, gay rights, and other issues that Washington often deals with. But to Kevin Fagan, the problem of pharmaceutical fakery is a real problem: Tim, his then 16 year old son, had been injected with counterfeits after a life-saving liver transplant in 2002.

Kevin’s crusade to help clean up our leaky drug distribution system — which all too often allows fake drugs to slip into the legitimate supply chain through shady secondary wholesalers — brought him to Washington, where Representative Steve Israel introduced Tim Fagan’s Law in 2005. The bill, and the significant problems with the distribution system that allows this to happen, are detailed more fully on my Counterfeit Drug Resource Page. Since I represent the Fagan family, it is a matter of some interest to me.

The problem with the proposed law doesn’t seem to be self-evident since it is non-partisan legislation that does the following:

Increases criminal penalties. The current federal law is three years in prison. Israel’s bill increases penalties and includes up to life in prison.

Mandates that a manufacturer must alert the FDA of a counterfeited drug in 2 days. Currently, there is no mandate. The pharmaceutical industry has said that it would voluntarily tell the FDA about counterfeited drugs within 5 business days.

Provides the FDA with the authority to require companies to use anti-counterfeiting technology, as the technology becomes feasible and available.

Mandates that the FDA implement the paper pedigree rule that was mandated in 1988 and has been postponed for 17 years. It also closes the “authorized wholesaler” loophole and includes manufacturers as needed to start the pedigree.

Authorizes $60 million for spot-checking for counterfeits for each year between fiscal years 2006 and 2010.

Authorizes $5 million for each year between fiscal years 2006 and 2010 for educating the public and health care professionals on how to identify counterfeit drugs.

Provides recall authority to the FDA for prescription drugs. Currently, the FDA can only recall equipment and can only encourage private companies to recall their drugs.

Authorizes the FDA to issue subpoenas with respect to preventing threats to public health.

So why would a bill that has no partisan agenda languish in a committee despite it being sound public policy? The answer, I’m afraid, is that it languishes simply because it came from the minority party. Israel, who is the Fagans’ congressman, happens to be a Democrat. So too is New York Senator Chuck Schumer, who introduced a counterfeit drug bill in the Senate.

With the Democrats taking control of Congress, it is hoped that this bill can now move out of the committees where it is stuck and out on to the floor for debate and voting.